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complete analyses of the issues presented.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 7, 2012

9:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District III
(headquartered in Wausau), which reversed a St. Croix County Circuit Court
decision, Judge Howard W. Cameron, Jr., presiding.

This
case examines the proper legal standard for determining whether a
constitutional taking has occurred in an inverse condemnation case involving a
runway extension at a municipal airport.

Some
background: An
inverse condemnation is an action brought by a property owner for compensation
from a governmental entity that has taken the owners’ property without bringing
formal condemnation proceedings.

The city of New Richmond owns and
operates the New Richmond Regional Airport, which is located on the outskirts
of the city.In 2007, the city extended
the main runway at the airport by 1,500 feet to accommodate certain types of
business jets.

In connection with the runway
project, the city condemned 62 acres of land owned by plaintiffs Steven and
Cristy Wickenhauser and also condemned an avigation (aerial navigation)
easement over 3.8 acres of the Wickenhausers’ remaining 80 acres.The Wickenhausers’ home is located in the
area covered by the avigation easement.The easement prohibits any buildings or trees exceeding 26 to 38 feet
tall, depending on their location.

The Wickenhauser’s and other
nearby landowners, Robert Brenner and Allan and Susan Seidling filed a petition
for inverse condemnation proceedings under Wis. Stat. § 32.10.

The case was tried to the
court.At trial the plaintiffs testified
to various complaints about the runway expansion’s effects, including odors,
dust, vibrations, sound, runway strobe lights and low overhead flights.Following the trial, the circuit court issued
a written decision and order dismissing the plaintiffs’ suit because none of
the plaintiffs had proven that the airplane overflight deprived them of all, or
substantially all, economic benefits of their property.As to the Wickenhausers’ claim, the trial
court held that the Wickenhausers had already been paid in the context of the
city’s direct condemnation of an avigation easement, which included the area on
which the Wickenhausers’ home was situated, for any loss in value to their
remaining property due to increased airplane overflights arising out of the
airport improvement project.

The Court of Appeals reversed and
remanded, concluding that the trial court used an improper legal standard in
dismissing the case.The Court of
Appeals concluded the trial court improperly used the standard for regulatory
takings rather than the standard for physical occupation cases.The Court of Appeals held that the plaintiffs
were entitled to compensation if they could prove that the airplane overflights
resulting from the airport improvement project had a direct, immediate and
substantial effect on the plaintiffs’ use and enjoyment of their land.

The city argues that the Court of
Appeals created a new conceptual category relating to airplane overflight
inverse condemnation cases, holding that if the overflights have a direct,
immediate and substantial effect on the use and enjoyment of the land a
constitutional taking occurs.The city
says that historically there have been only three conceptual categories that
are applied when an owner of real estate seeks compensation from the government
because the government’s action has claimed to have resulted in a
constitutional taking.Those three categories
are physical occupation, regulatory action, and consequential damages.The city also argues that when determining if
a taking has occurred, the owner’s property must be considered as a whole,
rather than being segmented into subparts for the purpose of analyzing if a
subpart of the property has been taken.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 7, 2012

10:45
a.m.

This is
a certification from the Wisconsin Court of Appeals, District III
(headquartered in Wausau). The Court of Appeals may certify cases that it
believes cannot be resolved by applying current Wisconsin law. The Wisconsin
Supreme Court, as the state’s preeminent law-developing court, often accepts
such certifications from the Court of Appeals. This case originated in
Pierce County Circuit Court, Judge James J. Duvall, presiding.

This
certification examines whether a condition of extended supervision that allows
any law enforcement officer to search the defendant, her home, or her vehicle,
for a firearm at any time without probable cause or reasonable suspicion is
permissible under the Fourth Amendment and Wis. Const. art. I, § 11.

Some background: At approximately
1:40 a.m. on March 13, 2008, a Prescott police officer observed Tally Ann
Rowan’s car skid past a stop sign and turn onto a highway without stopping. The
officer activated his car’s lights and began to follow Rowan, who crashed her
vehicle into a stop light pole less than a mile from where she turned onto the
highway.

As the officer approached Rowan’s
vehicle, he smelled intoxicants and observed that Rowan was belligerent and
swearing.He then called for assistance
from additional officers and firefighters.When Rowan was subsequently informed that the firefighters were going to
cut the vehicle’s battery cables to reduce the danger, Rowan said, “[G]et the
fuck away from there. Where the fuck is my gun?I’m going to shoot you.”After
Rowan made a reaching motion downward, the police removed her from the
vehicle.They subsequently found an
unloaded semiautomatic handgun and a box of ammunition in the vehicle.

Rowan was taken to a hospital,
where she continued to be very agitated, grabbing at people, spitting at police
and hospital employees, and threatening the doctor, other medical staff, and
their families.

As the officer
held Rowan’s arm at the hospital, Rowan grabbed the officer’s thumb and very seriously
injured the officer’s hand, leading to the charge of battery to a police
officer.

Rowan
was found guilty of all charges after a jury trial. The court sentenced her to
one year and two months of initial confinement and three years of extended
supervision on a charge of battery to a police officer. She also was also
convicted of operating a motor vehicle while under the influence of an
intoxicant, resisting or obstructing an officer, and carrying a concealed
weapon, but those charges are not at issue in this appeal.

Rowan
challenged a condition of extended supervision on the battery sentence in a
post-conviction motion.The court denied
the motion, but amended the condition to make it slightly narrower than its
initial order: “[T]he defendant’s person or her residence or her vehicle is
subject to search for a firearm at any time by any law enforcement officer
without probable cause or reasonable suspicion.”

The
circuit court ruled that this condition was a “special needs situation” based
on the particular facts of this case, including threats to law enforcement and
another judge, that required a departure from the normal Fourth Amendment
requirements of probable cause and a warrant.

Rowan
argues that the condition the court placed on her extended supervision is not
reasonable or appropriate. She further argues that there must be some
legislative authority to allow any law enforcement officer, as opposed to the
community corrections officer assigned to supervise her, to conduct searches.

The
state, on the other hand, argues that the circuit court properly exercised its discretion
and that the condition is permissible under Samson v. California, 547 U.S. 843
(2006). The state also argues that the condition is analogous to the conditions
imposed in other Wisconsin cases.

In certifying the case, the Court of Appeals
concludes there is no case in Wisconsin that directly addresses the situation
presented in this case.

WISCONSIN
SUPREME COURT

TUESDAY,
FEBRUARY 7, 2012

1:30
p.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which reversed a Waukesha County Circuit Court
decision, Judge Michael O. Bohren, presiding.

This
breach-of-contract case examines whether an insurance company may satisfy the
terms of its contract with a service provider by making a check out to both the
provider and the insured, and then sending the check to the insured.

Some
background: The dispute began when Erie Insurance Exchange’s insured, Willtrim
Group LLC, suffered a loss due to frozen pipes at a vacant rental property.
There is no dispute that Erie contracted with Best Price Plumbing to provide
plumbing services at Willtrim’s property. Erie paid Best’s invoice with an
$8,897 two-party check payable to Willtrim and Best, and sent the check to
Willtrim. Willtrim deposited the check into its account.Best never received payment.

Best
sued Erie for breach of contract, claiming it was due the amount on its
invoice. At trial, a member of the Willtrim LLC, Trevor Trimble, testified that
he received a check from Erie for the amount due to Best for plumbing services,
made out to Willtrim and Best, and deposited the check into Willtrim’s
account.He stated he was dissatisfied
with the plumbing services.Trimble
testified he entrusted the check to a handyman at the job site, who obtained
the endorsement of a Best employee.

Best’s president and a service
manager testified the check was not endorsed by Best and payment terms were not
discussed with Erie’s adjuster. The adjuster testified
that two-party checks are Erie’s usual course of business and the usual course
in the insurance industry.He said to
pay a contractor directly, Erie must be directed to do so by its insured and
thathe did not receive such
direction from Willtrim.

He
also stated there was no question that Erie desired to make the payment to
Best, and when Trimble requested the two-party check, the job was very near
completion.

The
verdict asked only whether Erie had entered into a contract for plumbing
services with Best and whether it had breached its contract.The jury answered the first question “yes,”
and the second question, “no.”

On
motions after verdict, the circuit court acknowledged it would sustain the
verdict if any credible evidence supported it.It determined, however, that the issue involved a question of contract
law.

The court ruled that when the contract is silent as to
terms of payment, the payment is to be made the payee’s principal place of
business.It was undisputed Erie did not
pay Best at its principal place of business; accordingly, the court ruled no
credible evidence would support a finding that Erie complied with its
contractual obligation to Best.

The
Court of Appeals reversed the $14,650.31 judgment against Erie.

It said that when considering a motion to
change the jury’s answers to the questions on the verdict, a trial court must
view the evidence in the light most favorable to the verdict and affirm the
verdict if it is supported by any credible evidence.

The
Court of Appeals noted the adjuster’s testimony about the two-party payment
convention in the insurance industry, and that Best had conceded that it did
not make “a direct pay request.” It
concluded it was up to the jury to resolve the conflict, and because there was credible evidence to support the
jury’s verdict that Erie did not breach its contract with Best, the circuit
court was clearly wrong when it changed the jury’s answer.

Best contends the circuit court correctly analyzed the
issue.It notes that its initial
proposal as well as its invoice that were sent to Erie prominently displayed
Best’s address.It states that Erie had
never raised any issue with respect to the quality of Best’s work, and it
contends that Trimble simply converted the funds due to Best.

Erie contends the only issue is a
fact question decided by the jury.It
argues the Court of Appeals correctly determined credible evidence supports the
jury verdict and that Best ignores the evidence supporting the verdict and
offers no valid basis for review under Wis. Stat. § 809.62(1r)(d).

WISCONSIN
SUPREME COURT

WEDNESDAY,
FEBRUARY 8, 2012

9:45
a.m.

This is
a review of a decision of the Wisconsin Court of Appeals, District II
(headquartered in Waukesha), which affirmed a Washington County Circuit Court
decision, Judge Andrew T. Gonring, presiding.

2010AP1702State
v. Negrete

This
case involves an illegal immigrant now facing deportation proceedings because
of a crime he was convicted of 18 years ago. The Supreme Court examines whether
the fact a transcript of Abraham C. Negrete’s plea hearing is no longer
available means that a motion to withdraw his guilty plea, pursuant to Sec.
971.08(2), Stats., cannot be granted.

Some
background: On May 28, 1992, Negrete, a citizen of Mexico, pleaded guilty to
second-degree sexual assault of a child.Negrete served his sentence.On
March 10, 2010, Negrete filed a motion to withdraw his guilty plea from the
1992 assault.

Negrete
alleged, by affidavit, that at the time he entered the guilty plea in this case
he was not advised of the immigration consequences of his guilty plea, and that
he did not know of the immigration consequences of the plea. Negrete tried to
obtain the transcript of the plea hearing, but the court reporter is deceased,
Negrete’s original attorney is deceased, and the judge who heard the case is
retired. The trial court found that no transcript is available.

On
May 5, 2010, without conducting a hearing, the trial court denied Negrete’s
motion, noting that, at the time Negrete’s plea was entered, the immigration
warning was “not mandatory.”The trial
court ruled that the plea questionnaire signed by Negrete indicated that
defense counsel had explained the immigration consequences to Negrete and that
Negrete understood. The court ruled that any failure to orally warn Negrete on
the record was harmless error.

Negrete
appealed, and the Court of Appeals affirmed.

The
state argued that Negrete’s claim is barred by laches, asserting that an
18-year delay in seeking to withdraw a plea is unreasonable.Negrete responds that he did not unduly delay
because he did not know his claim existed until deportation proceedings began
and questions whether a laches defense is reasonable where the current
deportation proceeding is apparently based on this 18-year-old conviction.

The
Court of Appeals opted to address the merits of Negrete’s claims. The court accepted,
for the purpose of discussion, that the trial court did not properly advise him
on the record, that no transcript can be had, and that deportation is
“likely.”The Court of Appeals agreed
that the alleged failure to inform Negrete would be harmless error if, when he
entered his plea, Negrete was aware that deportation could result.The Court of Appeals concluded that Negrete
was aware of this consequence, noting that he had initialed a box indicating
such, and that Negrete’s lawyer had signed the plea/waiver form indicating that
the lawyer had discussed and explained the contents of each item with Negrete.

According
to the Court of Appeals, therefore, “[t]here is nothing for an evidentiary
hearing to resolve” because there is record evidence that Negrete was advised
of the potential deportation consequences of the plea.

Negrete
suggests that when the transcript is unavailable, the motion must be granted
because the court is unable to determine that the warning was given. He also
asserts that by the very terms of the statute, a motion to withdraw one’s plea
is not ripe unless and until he faces immigration proceedings.

The
state contends that no relief was warranted because Negrete indicated his
understanding by initialing and signing the Request to Enter Plea and Waiver of
Rights form.

A
decision by the Supreme Court could affect similar cases that may arise
throughout the state.